S T A T E O F N E W Y O R K
________________________________________________________________________
683
2017-2018 Regular Sessions
I N A S S E M B L Y
January 9, 2017
___________
Introduced by M. of A. MAGNARELLI -- read once and referred to the
Committee on Governmental Operations
AN ACT to amend the executive law, in relation to establishing standards
of regulation to permit familial searching and partial DNA matches as
an investigative tool in certain unsolved crimes
THE PEOPLE OF THE STATE OF NEW YORK, REPRESENTED IN SENATE AND ASSEM-
BLY, DO ENACT AS FOLLOWS:
Section 1. Section 995 of the executive law, as added by chapter 737
of the laws of 1994, subdivision 7 as amended by chapter 19 of the laws
of 2012, is amended to read as follows:
§ 995. Definitions. When used in this article, the following words and
terms shall have the meanings ascribed to them in this section:
1. For purposes of general forensic analysis the term "forensic labo-
ratory" shall mean any laboratory operated by the state or unit of local
government that performs forensic testing on evidence in a criminal
investigation or proceeding or for purposes of identification provided,
however, that the examination of latent fingerprints by a police agency
shall not be subject to the provisions of this article.
2. For purposes of forensic DNA analysis, the term "forensic DNA labo-
ratory" shall mean any forensic laboratory operated by the state or unit
of local government, that performs forensic DNA testing on crime scenes
or materials derived from the human body for use as evidence in a crimi-
nal proceeding or for purposes of identification and the term "forensic
DNA testing" shall mean any test that employs techniques to examine
deoxyribonucleic acid (DNA) derived from the human body for the purpose
of providing information to resolve issues of identification. Regu-
lation pursuant to this article shall not include DNA testing on materi-
als derived from the human body pursuant to title five of article five
of the public health law for the purpose of determining a person's
genetic disease or medical condition and shall not include a laboratory
operated by the federal government.
EXPLANATION--Matter in ITALICS (underscored) is new; matter in brackets
[ ] is old law to be omitted.
LBD00498-01-7
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3. "DNA testing methodology" means methods and procedures used to
extract and analyze DNA material, as well as the methods, procedures,
assumptions, and studies used to draw statistical inferences from the
test results.
4. "Blind external proficiency testing" means a test sample that is
presented to a forensic laboratory for forensic DNA testing through a
second agency, and which appears to the analysts to involve routine
evidence submitted for forensic DNA testing.
5. "DNA" means deoxyribonucleic acid.
5-A. "DNA PROFILE" MEANS A SET OF DNA IDENTIFICATION CHARACTERISTICS
WHICH MAY PERMIT THE DNA OF ONE PERSON TO BE DISTINGUISHABLE FROM THAT
OF ANOTHER PERSON. FOR SHORT TANDEM REPEAT DNA PROFILES, IT MEANS THE
LIST OF ALLELES CARRIED BY A PARTICULAR INDIVIDUAL AT A SPECIFIC SET OF
GENETIC LOCI.
5-B. "SUBJECT DNA PROFILE" MEANS THE DNA PROFILE GENERATED BY ANALYSIS
OF A BIOLOGICAL SAMPLE COLLECTED FROM A SUBJECT CONVICTED OF A CRIME
WHOSE SPECIMEN WAS COLLECTED: AFTER A CRIMINAL TRIAL; PURSUANT TO A PLEA
AGREEMENT; AS A CONDITION OF PARTICIPATION IN A TEMPORARY RELEASE,
COMPREHENSIVE ALCOHOL AND SUBSTANCE ABUSE TREATMENT (CASAT) OR SHOCK
INCARCERATION PROGRAM; AS A CONDITION OF RELEASE ON PAROLE, POST-RELEASE
SUPERVISION, PRESUMPTIVE RELEASE OR CONDITIONAL RELEASE ON A DEFINITE OR
INDETERMINATE SENTENCE; OR AS A CONDITION OF PROBATION OR INTERIM
PROBATION SUPERVISION.
5-C. "SUBJECT INDEX" MEANS THE ELECTRONIC DATABASE CONTAINING DNA
PROFILES GENERATED FROM A SUBJECT CONVICTED OF A CRIME WHOSE DNA SPECI-
MEN WAS COLLECTED: AFTER A CRIMINAL TRIAL; PURSUANT TO A PLEA AGREEMENT;
AS A CONDITION OF PARTICIPATION IN A TEMPORARY RELEASE, COMPREHENSIVE
ALCOHOL AND SUBSTANCE ABUSE TREATMENT (CASAT) OR SHOCK INCARCERATION
PROGRAM; AS A CONDITION OF RELEASE ON PAROLE, POST-RELEASE SUPERVISION,
PRESUMPTIVE RELEASE OR CONDITIONAL RELEASE ON A DEFINITE OR INDETERMI-
NATE SENTENCE; OR AS A CONDITION OF PROBATION OR INTERIM PROBATION
SUPERVISION.
6. "State DNA identification index" means the DNA identification
record system for New York state established pursuant to this article.
6-A. "CODIS" MEANS THE FEDERAL COMBINED DNA INDEX SYSTEM.
6-B. "NDIS" MEANS THE NATIONAL DNA INDEX SYSTEM.
6-C. "FORENSIC DNA INDEX" MEANS THE ELECTRONIC DATABASE IN CODIS THAT
CONTAINS DNA PROFILES GENERATED FROM CASEWORK EVIDENCE BY FORENSIC DNA
LABORATORIES.
6-D. "UNIDENTIFIED HUMAN REMAINS INDEX" MEANS THE ELECTRONIC DATABASE
IN CODIS THAT CONTAINS DNA PROFILES GENERATED FROM HUMAN REMAINS OF
UNKNOWN ORIGIN.
7. "Designated offender" means a person convicted of any felony
defined in any chapter of the laws of the state or any misdemeanor
defined in the penal law except that where the person is convicted under
section 221.10 of the penal law, only a person convicted under subdivi-
sion two of such section, or a person convicted under subdivision one of
such section who stands previously convicted of any crime as defined in
subdivision six of section 10.00 of the penal law.
8. "DNA record" means DNA identification information prepared by a
forensic DNA laboratory and stored in the state DNA identification index
for purposes of establishing identification in connection with law
enforcement investigations or supporting statistical interpretation of
the results of DNA analysis. A DNA record is the objective form of the
results of a DNA analysis sample.
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9. "DNA subcommittee" shall mean the subcommittee on forensic DNA
laboratories and forensic DNA testing established pursuant to subdivi-
sion thirteen of section nine hundred ninety-five-b of this article.
10. "Commission" shall mean the commission on forensic science estab-
lished pursuant to section nine hundred ninety-five-a of this article.
11. "DIVISION" SHALL MEAN THE NEW YORK STATE DIVISION OF CRIMINAL
JUSTICE SERVICES.
12. "ALLELE" SHALL MEAN ONE OF THE ALTERNATE FORMS OF THE DNA AT A
PARTICULAR GENETIC LOCUS.
13. "LOCI" SHALL MEAN THE SPECIFIC CHROMOSOMAL LOCATIONS OF GENES OR
OTHER DNA ELEMENTS SUCH AS SHORT TANDEM REPEATS.
14. "STR" SHALL MEAN SHORT TANDEM REPEAT.
15. "STR ANALYSIS" SHALL MEAN A FORM OF TESTING WHICH PROVIDES DNA
PROFILES FOR LOCI WHICH CONTAIN SIMPLE DNA UNIT REPEATS. STR LOCI ON THE
Y-CHROMOSOME ARE REFERRED TO AS "Y-STRS".
16. "MITOCHONDRIAL DNA TESTING" OR "MTDNA TESTING" REFERS TO ANALYSIS
OF GENETIC POLYMORPHISMS THAT OCCUR IN THE DNA OF MITOCHONDRIA.
17. "CASEWORK EVIDENCE DNA PROFILE" SHALL MEAN A DNA PROFILE THAT IS
DERIVED FROM BIOLOGICAL EVIDENCE ORIGINATING FROM AND ASSOCIATED WITH
THE COMMISSION OF A CRIME.
18. "CONVICTED OFFENDER DNA PROFILE" SHALL MEAN THAT DNA PROFILE
GENERATED BY TESTING OF A BIOLOGICAL SAMPLE COLLECTED FROM A DESIGNATED
OFFENDER AS DEFINED IN SUBDIVISION SEVEN OF THIS SECTION.
19. "CONVICTED OFFENDER INDEX" SHALL MEAN THAT ELECTRONIC DATABASE
CONTAINING DNA PROFILES GENERATED FROM DESIGNATED OFFENDERS AS DEFINED
BY SUBDIVISION SEVEN OF THIS SECTION AND STORED IN CODIS.
20. "FORENSIC DNA PROFILE" REFERS TO A DNA PROFILE THAT IS DERIVED
FROM BIOLOGICAL EVIDENCE ORIGINATING FROM AND ASSOCIATED WITH THE
COMMISSION OF A CRIME.
21. "INDIRECT ASSOCIATION" SHALL MEAN THE DETERMINATION DURING THE
CODIS CANDIDATE MATCH CONFIRMATION PROCESS THAT A FORENSIC INDEX DNA
PROFILE IS SIMILAR TO A DNA PROFILE IN THE CONVICTED OFFENDER INDEX OR
SUBJECT INDEX AND A COMPARISON REVEALS THAT THE OFFENDER OR SUBJECT IS
NOT THE SOURCE OF THE DNA PROFILE BUT MAY BE A RELATIVE OF THE SOURCE OF
THE FORENSIC INDEX PROFILE. AN INDIRECT ASSOCIATION MAY ALSO BE REFERRED
TO AS A "PARTIAL MATCH".
22. "FAMILIAL SEARCHING" REFERS TO THE PROCESS OF PURPOSEFULLY SEARCH-
ING A DNA DATABANK FOR PARTIAL MATCHES OR INDIRECT ASSOCIATIONS BETWEEN
A NEW YORK STATE CONVICTED OFFENDER'S DNA PROFILE AND A DNA PROFILE
DEVELOPED FROM CRIME SCENE EVIDENCE.
23. "LDIS" REFERS TO THE LEVEL OF THE CODIS PROGRAM IN WHICH A PUBLIC
DNA LABORATORY MAINTAINS ITS DNA RECORDS FOR SEARCHING AND UPLOADING TO
HIGHER LEVEL INDICES SUCH AS SDIS AND NDIS.
§ 2. Section 995-b of the executive law is amended by adding a new
subdivision 12-a to read as follows:
12-A. IN CASES LIMITED TO VIOLENT FELONY OFFENSES, HOMICIDES AND
BURGLARY IN THE THIRD DEGREE, AS DEFINED BY ARTICLES ONE HUNDRED TWEN-
TY-FIVE AND ONE HUNDRED FORTY OF THE PENAL LAW, RESPECTIVELY, THE
COMMISSION SHALL PROMULGATE STANDARDS THAT PERMIT FAMILIAL SEARCHING AND
THE RELEASE OF PARTIAL MATCHES TO INVESTIGATING LAW ENFORCEMENT OFFI-
CIALS AND THE APPROPRIATE PROSECUTOR OR PROSECUTORS.
(A) SUCH STANDARDS SHALL PERMIT THE USE OF FAMILIAL SEARCHING. SUCH
STANDARDS SHALL ALSO REQUIRE THE RELEASE OF THE RESULTS OF SUCH SEARCH
TO THE INVESTIGATING LAW ENFORCEMENT OFFICIALS AND THE APPROPRIATE
PROSECUTOR OR PROSECUTORS IF, UPON APPLICATION OF A POLICE OFFICER, A
DISTRICT ATTORNEY OR OTHER PUBLIC SERVANT ACTING IN THE COURSE OF HIS
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OFFICIAL DUTIES, A LOCAL COURT DETERMINES THAT ALL OF THE FOLLOWING
CONDITIONS ARE SATISFIED:
(I) THERE IS REASONABLE CAUSE TO BELIEVE THAT A FAMILIAL SEARCH USING
THE CRIME SCENE DNA PROFILE MAY RESULT IN A PARTIAL DNA MATCH;
(II) THE CRIME SCENE DNA PROFILE DERIVES FROM A SINGLE SOURCE AND
CONTAINS AT LEAST TEN OF THE CODIS CORE LOCI;
(III) THE CRIME IS UNSOLVED AND ALL PRACTICABLE INVESTIGATIVE LEADS
HAVE BEEN EXHAUSTED;
(IV) THE DNA LABORATORY HAS RUN AN EXACT MATCH ON THE CRIME SCENE DNA
PROFILE WITH NEGATIVE RESULTS;
(V) THE INVESTIGATING LAW ENFORCEMENT AGENCY OR THE PROSECUTOR MAKES A
WRITTEN REQUEST THAT THE DNA LABORATORY CONDUCT A FAMILIAL SEARCH ON THE
CRIME SCENE DNA PROFILE; AND
(VI) THE INVESTIGATING LAW ENFORCEMENT AGENCY AND THE PROSECUTOR
COMMIT TO FURTHER INVESTIGATION OF THE CASE IF THE NAME OF THE POTEN-
TIALLY RELATED OFFENDER IS RELEASED AND THE NAME OF THE POTENTIALLY
RELATED OFFENDER WILL BE TREATED AS A CONFIDENTIAL, NON-PUBLIC INVESTI-
GATIVE LEAD.
(B) ONCE A LABORATORY HAS RECEIVED A PARTIAL MATCH AS A RESULT OF A
FAMILIAL SEARCH OR A STANDARD SEARCH OF THE DNA INDEX, THE LABORATORY
SUBMITTING THE CRIME SCENE DNA PROFILE TO THE CODIS PROGRAM SHALL
COMPLETE AN APPLICATION TO THE DIVISION REQUESTING THE NAMES OF THE
INVOLVED OFFENDERS AND, AS PART OF THE APPLICATION, CONFIRM THAT:
(I) AN LDIS SEARCH HAS BEEN PERFORMED USING THE CRIME SCENE PROFILE IN
THE FORENSIC UNKNOWN INDEX;
(II) THE CRIME SCENE DNA PROFILE DERIVES FROM A SINGLE SOURCE AND
CONTAINS AT LEAST TEN OF THE CODIS CORE LOCI;
(III) THE SUBMITTING AGENCY AND THE APPROPRIATE PROSECUTOR HAVE
COMMITTED TO PURSUE FURTHER INVESTIGATION OF THE CASE IF THE NAME IS
RELEASED; AND
(IV) THE SUBMITTING LABORATORY HAS CONFIRMED THAT RELEASE OF THE NAME
WILL BE FOLLOWED BY A REPORT TO THE INVESTIGATING LAW ENFORCEMENT AGEN-
CY. THE REPORT WILL INDICATE THAT THE MATCH IS INDIRECT AND WILL ALSO
INDICATE THAT THE AVAILABLE DATA SUGGESTS THAT THE SOURCE OF THE EVIDEN-
TIARY DNA PATTERN IS POTENTIALLY A RELATIVE OF THE CONVICTED OFFENDER.
(C) IN THE EVENT THAT A LABORATORY FINDS A PARTIAL MATCH AS A RESULT
OF A STANDARD SEARCH OF A DNA INDEX, BUT DOES NOT RECEIVE AN EXACT
MATCH, THE LABORATORY SHALL FIRST CONTACT THE SUBMITTING AGENCY AND THE
APPROPRIATE PROSECUTOR TO CONFIRM THAT THEY ARE COMMITTED TO PURSUE
FURTHER INVESTIGATION OF THE CASE IF THE NAME IS RELEASED. AFTER RECEIV-
ING WRITTEN CONFIRMATION FROM THE SUBMITTING AGENCY AND THE APPROPRIATE
PROSECUTOR, THE LABORATORY SHALL FOLLOW THE STEPS OUTLINED IN PARAGRAPH
(B) OF THIS SUBDIVISION.
(D) THE REPORT GENERATED FROM THE SUBMITTING LABORATORY TO THE INVES-
TIGATING LAW ENFORCEMENT AGENCY SHALL INDICATE THAT:
(I) THE MATCH IS A RESULT OF FAMILIAL SEARCHING OR IS A PARTIAL MATCH
RESULTING FROM A STANDARD SEARCH OF A DNA INDEX;
(II) THE INFORMATION PROVIDED IS A CONFIDENTIAL, NON-PUBLIC INVESTI-
GATIVE LEAD; AND
(III) THE AVAILABLE DATA SUGGESTS THAT THE SOURCE OF THE EVIDENTIARY
DNA PATTERN IS POTENTIALLY A RELATIVE OF THE CONVICTED OFFENDER BUT IS
NOT CONCLUSIVE EVIDENCE OF THE SAME.
(E) THE DIVISION WILL PROVIDE THE MATCH INFORMATION TO THE STATE DNA
DATABANK WHICH, IN TURN, WILL CALCULATE AND REPORT WHETHER THE APPROPRI-
ATE STATISTICAL THRESHOLD APPROVED BY THE DNA SUBCOMMITTEE HAS BEEN MET.
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(F) UPON RECEIVING A COMPLETED APPLICATION FROM THE LOCAL PARTICIPAT-
ING CODIS LABORATORY AND CONFIRMATION FROM THE DATABANK THAT THE APPRO-
PRIATE STATISTICAL THRESHOLD HAS BEEN MET, THE DIVISION SHALL RELEASE
THE NAME OF THE OFFENDER TO THE SUBMITTED LABORATORY WHO SHALL, IN TURN,
RELEASE THE INFORMATION TO THE INVESTIGATING LAW ENFORCEMENT AGENCY
AFTER A LOCAL CRIMINAL COURT HAS DETERMINED THAT ALL OF THE REQUIREMENTS
IN PARAGRAPH (A) OF THIS SUBDIVISION HAVE BEEN SATISFIED. IF THE APPRO-
PRIATE STATISTICAL THRESHOLD VALUE IS NOT SUPPORTED BY THE AVAILABLE
DATA, THEN TESTING OF ADDITIONAL LOCI OF THE OFFENDER SAMPLE MAY BE
REQUIRED AND MAY INCLUDE Y-STR AND/OR MTDNA ANALYSIS. IF THE SUBSEQUENT
TESTING DOES NOT MEET THE APPROPRIATE THRESHOLD, THE DATABANK WILL NOTI-
FY THE DIVISION AND THE OFFENDER'S NAME WILL NOT BE RELEASED.
(G) THIS POLICY WILL BE SUBJECT TO REVIEW BY THE DNA SUBCOMMITTEE
EVERY TWO YEARS.
(H) THE SAME STANDARDS AND PROCEDURES DEFINED IN THIS SECTION APPLY TO
REQUESTS FOR PARTIAL MATCH AND FAMILIAL SEARCHING INFORMATION FROM CRIM-
INAL JUSTICE AGENCIES FROM OUTSIDE OF THE STATE.
§ 3. Section 995-f of the executive law, as amended by chapter 560 of
the laws of 1999, is amended to read as follows:
§ 995-f. Penalties. (A) Any person who [(a)] (I) intentionally
discloses a DNA record, or the results of a forensic DNA test or analy-
sis, to an individual or agency other than one authorized to have access
to such records pursuant to this article or [(b)] (II) intentionally
uses or receives DNA records, or the results of a forensic DNA test or
analysis, for purposes other than those authorized pursuant to this
article or [(c)] (III) any person who knowingly tampers or attempts to
tamper with any DNA sample or the collection container without lawful
authority shall be guilty of a class E felony.
(B) ANY PERSON WHO (I) INTENTIONALLY DISCLOSES A DNA RECORD, OR THE
RESULTS OF A FORENSIC DNA TEST OR ANALYSIS, FOUND AS A RESULT OF FAMI-
LIAL SEARCHING OR A PARTIAL MATCH, TO AN INDIVIDUAL OR AGENCY OTHER THAN
ONE AUTHORIZED TO HAVE ACCESS TO SUCH RECORDS PURSUANT TO THIS ARTICLE
OR (II) INTENTIONALLY USES OR RECEIVES DNA RECORDS, OR THE RESULTS OF A
FORENSIC DNA TEST OR ANALYSIS, FOUND AS A RESULT OF FAMILIAL SEARCHING
OR A PARTIAL MATCH, FOR PURPOSES OTHER THAN THOSE AUTHORIZED PURSUANT TO
THIS ARTICLE SHALL BE GUILTY OF A CLASS E FELONY, AND UPON CONVICTION
THEREOF, SHALL BE SUBJECT TO A FINE OF NOT MORE THAN TEN THOUSAND
DOLLARS AND ANY SUCH OTHER PENALTIES AS PROVIDED.
§ 4. This act shall take effect immediately.